Maricopa County Attorney Bill Montgomery went to the media to explain why the judge in the Debra Milke retrial should not allow a key witness to take the Fifth Amendment.

The judge called him on it.

In a ruling posted Tuesday morning, Superior Court Judge Rosa Mroz asked Montgomery why his office had not informed the court or defense attorneys of a letter from the U.S. Attorney’s Office, saying it had no intention of filing criminal charges against the detective who testified that Milke confessed to him in 1989.

Instead, Mroz said in the first line of her ruling that she learned about the letter by reading about it in The Arizona Republic rather than hearing from the case prosecutor, Deputy County Attorney Vince Imbordino, to whom the letter, dated Aug. 30, was addressed.

Mroz said she was surprised because the court had held several hearings about the subject of the letter over the past several weeks.

Whether Mroz takes action against the County Attorney’s Office remains to be seen. Courthouse observers have questioned whether Imbordino and by extension Montgomery have violated ethical rules requiring “candor toward the tribunal.”

“They may indeed have a potential problem on this,” Phoenix attorney Michael Black said. “She can impose sanctions if she chooses to do that.”

Last week, former Phoenix police Detective Armando Saldate informed the court through his attorney that he intended to invoke his Fifth Amendment right not to incriminate himself and would refuse to testify in the case.

In Milke’s first trial in 1990, Saldate testified that Milke confessed to him that she was involved in the 1989 murder of her 4-year-old son, Christopher. Milke was convicted and sent to death row largely on the basis of that alleged confession, which was not recorded and to which there were no witnesses.

Milke still claims she never confessed.

But in March, the 9th U.S. Circuit Court of Appeals threw out Milke’s conviction and death sentence because her defense had not been given access to Saldate’s tarnished personnel record detailing deceptions in other cases. The chief judge asked that Saldate be investigated by the U.S. Attorney’s Office in Arizona and the U.S. Attorney General’s Office to see if Milke’s civil rights were violated.

The 9th Circuit opinion cautioned that if Saldate were to stick by any stories judged to be false, he ran the risk of committing perjury.

Saldate subsequently requested an attorney to represent him in a hearing that was scheduled for Sept. 23 to determine whether the confession was admissible in the new trial. Imbordino asked the court to provide an attorney for Saldate on Aug. 23, and Mroz obliged on Aug. 30.

That attorney, Larry Debus, then informed the court on Thursday that Saldate may not testify. Mroz responded that if Saldate did not testify, the confession would not be admitted into evidence.

On Friday, Montgomery held a news conference to convince the public that the 9th Circuit had erred in its ruling and that Saldate should be compelled to testify. He also distributed the letter to Imbordino from an assistant U.S. attorney saying that the statute of limitations had run out on possible criminal charges against Saldate.

Montgomery declined to comment on the judge’s ruling because the case is pending.

But late Tuesday, Imbordino filed an explanation with the court, saying that Montgomery held the news conference “to rebut the continued mischaracterization of Detective Saldate and ... the need ... to assert Fifth Amendment protections as reported in the press.”

Imbordino also wrote that the defense attorneys were aware of the letter even if the judge wasn’t. Imbordino attached a copy of the letter to his filing.

Montgomery has repeatedly stressed to the media that the 9th Circuit ruling was incorrect, which Milke’s lead attorney, Michael Kimerer, calls “insane.”

“A lot of those factual issues were raised during the appeals process,” Kimerer said. “It’s black-letter law that once you have a judgment like that, you live by it.”

Debus is holding firm in advising Saldate to plead the Fifth, however, pointing out that the U.S. Attorney’s Office letter refers to a “preliminary” finding, which he interprets to mean that the agency could reconsider.

And it applies only to decisions made by the U.S. attorney for the District of Arizona. Debus noted that the U.S. Attorney General’s Office has not yet weighed in on the case.

“There is no statute of limitations in a death case,” Debus said.

Furthermore, he said, any expired statute of limitations would refer to the 1990 testimony; Saldate testified against Milke in federal court in 2010.

“My job is to determine if there is a risk to my client,” Debus said. “Is there exposure? Is there risk? He’s got the second highest court in the land saying he could be committing perjury: That’s a risk.”

Mroz canceled the Sept. 23 hearing on suppressing the confession and ordered the opposing attorneys to appear on that date to discuss the status of the case and scheduling matters.

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